An Analysis of Juvenile Justice in India

Introduction

At one point of time, the 26/11 Mumbai terror attack accused, Ajmal Kasab, a Pakistani
terrorist, had claimed that he was a juvenile and therefore he should be given benefit of the law
relating to juvenile justice in India, notwithstanding the fact that he was involved in a ghastly
terror attack in which 164 persons were killed. However, his claim was found to be false. The
issue of juvenile justice again came upfront in the 16/12/2012 Delhi gang rape case when one
of the accused was found to be a juvenile. The law requires that this can be dealt only under
juvenile justice act and not under the normal criminal laws that apply to adults. This implies
that he cannot be sentenced to imprisonment and cannot be awarded death penalty. Due to the
strong demand from the society to consider this accused as an adult and apply the normal
criminal laws applicable to an adult, and thus award death penalty and because of other similar
cases cropping up regularly in the country, we need to take a deep look into the laws to first
understand the juvenile justice system of the country and second, to see if we can treat juveniles
at par with adults while granting punishment for committing such heinous offences.

‘Juvenile’ and ‘Juvenile in Conflict with Law’

The first and foremost thing is to define a ‘juvenile’ and a ‘juvenile in conflict with law’.
Juvenile can be defined as a child who has not attained a certain age at which he, like an adult
person under the law of the land, can be held liable for his criminal acts. The juvenile is a child
who is alleged to have committed/ violated some law which declares the act or omission on the
part of the child as an offence. Juvenile and minor in legal terms are used in different context.
Juvenile is used when reference is made to a young criminal offender and minor relates to legal
capacity or majority.1 In India, until passing of Children Act, 1960 there was no uniformity
regarding age limitation of juvenile delinquent. Bombay Children Act, 1948 defined ‘child’ to
mean a boy who has not attained the age of sixteen years or girl who has not attained the age
of eighteen years. 2 The U.P. Children Act defined “child” as a person under the age of eighteen
years.3 Under A.P. Children Act, 1920 “child” means a person less than 14 years of age. 4 The

1
Black Dictionary of Law
2
The Bombay Children Act, 1948, Section 4
3
The Uttar Pradesh Children Act, 1951, Section 2(4)
4
The Andhra Pradesh Children Act, 1951, Section 2(d)

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Saurashtra and West Bengal defines a “child” as a person who has not attained the age of
eighteen years.5 Juvenile Justice Act, 1986 defined a juvenile or child to be a person who in
case of a boy has not completed age of 16 years and in case of a girl 18 years of age. The JJA
Act, 1986 was repealed by 2000 Act and the distinction with regard to age between male and
female juveniles has been done way with by the Government of India in performance of its
obligation to the international obligations. Now age of juvenile in conflict with law for male
and female has been fixed at 18 years. A juvenile in conflict with law under the Juvenile Justice
(Care and Protection) of Children Amendment Act, 2006 is a juvenile who is alleged to have
committed an offence and has not completed his/ her 18th year of age as on the date of
commission of such offence.6

Indian laws have created four categories of persons according to their age. The criminal liability
of an accused depends upon the category in which that person falls. The first of these is a person
below seven years of age. Section 82 of the Indian Penal Code, 1860 states that nothing is an
offence which is done by a child under seven years of age. The simple reason behind giving
such an exemption is the absence of ‘mens rea’ i.e. guilty mind or criminal intent. People who
at the time of commission of the crime could not and did not know the right from the wrong
should not be penalised. The second category of persons is those who are between the age of
seven and twelve years. Section 83 deals with them and lays down that if an offence is
committed by such a person, it will first have to be ascertained whether the child has attained
sufficient maturity of understanding due to which he can judge the nature of his alleged conduct
and the consequences thereof. The persons between the age of twelve and eighteen years fall
into the third category and if an offence is committed by such a person, he shall be liable for
such offence. However, he shall not be prosecuted and punished like adult offenders, but would
be dealt with only in accordance with the provisions of the law relating to juvenile justice.
Lastly, a person above the age of eighteen years is criminally liable for an offence in accordance
with the normal criminal laws of the country.

Evolution of the Law in India

The history of juvenile justice in India can be traced back to the 18th century. Prior to 1773,
like other countries the concept of juvenile justice in India was far from developed. Children’s
actions, both criminal and non-criminal, were governed by the existing Hindu and Muslim laws

5
Saurashtra and West Bengal Children Act
6
Definition, Meaning, Causes and theories of Prevention of Juvenile Delinquency, available at
http://shodhganga.inflibnet.ac.in/bitstream/10603/7809/9/09_chapter%202.pdf

Copyright © 2014. DEADLY LAW

wherein it was the primary responsibility of the families to monitor their children’s actions.
Although these laws had no specific reference to juvenile delinquents, the Hindu law of
Manusmriti referred to certain offences, some of them included the examples of a child,
littering on a public street was not held liable for the actions so ensued, but as a punishment
was required to clean the litter whereas, adults on the other hand, had to pay a fine and clean
the trash.

The period between 1850 and 1919 was a time where the country was faced by a rapid social
change, industrialization and increasing population. These changes brought about a new class
of delinquent, neglected and dependent children needing formal intervention. Thus the need
for new legislations dealing with children was felt. Some of the most important laws passed
between 1850 and 1919 were the Apprentice Act (1850), the Indian Penal Code (1860), the
Code of Criminal Procedure (1861), and the Reformatory Act (1876 and 1897). The Apprentice
Act (1850) dealt with young people between the ages of 10 and 18 who were either destitute
or petty offenders. Children who were convicted were made to serve out their sentences as
apprentices for businessmen. The Code of Criminal Procedure of 1861 allowed for separate
trials of persons younger than age 15 as well as their confinement in reformatories rather than
prisons. It was the result of these enactments that penal philosophy in India towards juveniles
could be seen to be changing from that of penal to reformation. The concept of a reformatory
school for delinquent children came to fruition with the passage of the Reformatory Schools
Act of 1876. This policy of separate treatment of juveniles was further bolstered by the
Reformatory School Act of 1897, which dealt solely with the treatment and rehabilitation of
young offenders. It allowed boys younger than the age of 15 to be placed in reformatory until
18 years of age. Boys younger than 14 years of age were released on license, only on the
grounds that they could obtain subsequent employment.7

The years following 1950 witnessed both official and non-governmental initiatives that
contributed to the development of a more pronounced juvenile justice system in India. To
address the increase in neglected and delinquent children as a result of partition of the country
into Pakistan and India, the Indian government passed a Central Children’s Act (CCA in 1960).
The CCA provided for the care, protection, and treatment of juveniles, and made it applicable
in the territories under direct central government rule. Further still in 1974, India declared its
National Policy for Children, recognizing children as the nation’s supremely important asset

7
Child Laws in India, www.wscpedia.org

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and that their programmes must find a prominent place in the national plan for the development
of human resources. The policy included, among other things, training and rehabilitation of
delinquent, destitute, neglected and exploited children.

By 1986, almost all states had passed their own child legislations but these Acts lacked
consistency in terms of defining delinquency, court procedures, and institutionalization
practices. The Indian government thus felt the need for a children justice scheme that could be
applied throughout the country and this is how Juvenile Justice Act of 1986 substantiated. The
JJA was considered a unique piece of social legislation intended to provide care, protection,
treatment, development and rehabilitation for neglected and delinquent juveniles as well as the
adjudication of matters related to the disposition of delinquent juveniles. To accomplish the
goals of this legislation, special provisions were made for separate procedures for handling
offenders and non-offenders. Juvenile courts were created to deal with juvenile delinquents,
and juvenile welfare boards were established to handle neglected juveniles.8 With the
enactment of JJA 1986, though there continued to be a single law, two distinct machineries
were set up to deal with “neglected juveniles” and “delinquent juveniles”. Pending their
enquiries before their respective competent authorities, both these categories of children were
kept in the Observation Home. JJA 2000 for the first time provided for “juveniles in conflict
with law” and “children in need of care and protection” to be kept separately pending their
enquiries. This segregation aims to curtail the corruption of the innocent child from the
influence of the ‘criminal juvenile’.9
A revolutionary change introduced by the JJA 2000 is in the constitution of the
children court referred to as the Juvenile Justice Board (JJB). It is constituted as a bench
consisting of one Magistrate and two social workers. The decisions are to be made by majority
and the Magistrate has a casting vote in case of a tie. The JJB is required to determine age,
decide the question of bail, determine if the child has committed the alleged offence or not, as
well as pass appropriate orders in the matter. In deciding any of these matters, the two social
workers together may overrule the decision of the Magistrate. Realising the importance of
special treatment towards child offenders, the JJA 2000 has provided for appointment of special
police officer in each police station to deal with children under it. It continues to provide for
grant of bail to all children irrespective of the offence being bailable or non-bailable, except

8
Juvenile Justice in India- On a Path to Redemption, available at
http://www.lawyersclubindia.com/articles/print_this_page.asp?article_id=181
9
Child Protection and Juvenile Justice System for Juvenile in Conflict with Law, Ms. Maharukh Adenwalla,
http://www.childlineindia.org.in/pdf/CP-JJ-JCL.pdf

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when the release will expose the child to moral danger or bring the child in contact with known
criminals or will be against the interest of justice.10

Juvenile Justice Board

The centre of interest in the juvenile court is always the juvenile and his welfare, and not the
act or its consequences which might have resulted in his (or her) being brought before the
court.11 Criminal cases of a juvenile in conflict with law are to be dealt with by the JJB, and
not the regular criminal courts. The first Juvenile Court in India was established in Bombay in
1927.12 Initially it was presided over by a Presidency Magistrate who used to sit for a few hours
on fixed days. Thereafter, since 1942, the Juvenile court was manned by a full-time stipendiary
Magistrate who was assisted by a team of experts, such as POs, psychologists. Juvenile Welfare
Boards were constituted under the 1986 Act to exclusively deal with cases of neglected
juveniles, and the Juvenile Court, to have sole jurisdiction over delinquent juveniles.

The chief purpose for distinct handling of a juvenile’s case is that such case requires a socio-
legal approach as reformation and rehabilitation, and punishment is not the goal. Under JJA
2000, JJB is the ‘competent authority’ in relation to juveniles in conflict with law. The
constitution of the JJB reflects this objective of juvenile legislation. The JJB has to tread a fine
path; juveniles are culpable for their criminal acts, but they should not be penalised for such
action, instead the aim should be to persuade them away from the enticements of a life of crime.
The 2000 Act has given equal importance to the Magistrate and social workers; they jointly
constitute the competent authority to deal with juvenile cases. When the JJB is satisfied that an
offence has been committed, then the social workers play an important role in deciding what
should be done for the comprehensive rehabilitation of the juvenile, keeping in view the
circumstances in which the offence was committed. The law recognizing the importance of
speedy inquiry has mandated the JJB to complete an inquiry within four months from the date
of its commencement, and if the same is not possible due to the special circumstances of a case,
the JJB is required to extend the stipulated period for completion of inquiry by a reasoned

10
Main Features of the JJA 2000, Juvenile Justice: Securing the Rights of Children during 1998-2008, Dr. Ved
Kumari
11
Juvenile Justice and Juvenile Correction: Pride and Prudence, M.S. Sabnis (Somaiya Publications Pvt. Ltd.,
Bombay and New Delhi- 1996)
12
Child Protection and Juvenile Justice System for Juvenile in Conflict with Law, Ms. Maharukh Adenwalla,
http://www.childlineindia.org.in/pdf/CP-JJ-JCL.pdf

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order.13 Certain JJBs, especially those functioning in metropolises, have huge back-log of
cases. A method for curbing this accumulation of cases is by increasing the sittings of the JJB.

Apprehension and Bail

Under Juvenile Legislation, the word “apprehension” replaces the word “arrest”. The
precautions and safeguards contained in the Constitution of India and Supreme Court
judgments with regards to the rights of an accused on arrest also apply to juveniles in conflict
with law. The JJB on first production should seek a police report with regards to the date and
time of the juvenile’s arrest and his admission to the Observation Home, and whether a parent
or guardian or person of juvenile’s choice and the PO has been informed about the juvenile’s
arrest. Moreover, the particulars so furnished by the police should be gotten confirmed from
the juvenile.

Bail is the release of an accused person pending investigation and/ or trial, while at the same
time ensuring his future attendance in court at the trial stage. The CrPC divided offences into
bailable and non-bailable offences. The position is quite different under juvenile jurisprudence.
Since the enactment of different Children Acts, the grant of bail has been mandatory under
juvenile legislation except in certain prescribed instances that could cause harm to the child if
so released.

Special Treatment of Juveniles

Juveniles in conflict with law are subject to the same substantive law as are adult criminals, but
their treatment is different. The juvenile justice system focuses on future welfare of the juvenile
rather than stressing on punishment for past misdemeanours. As reformation and rehabilitation
is the basic intent of the juvenile justice system, on being satisfied, after inquiry, that a juvenile
in conflict with law has committed an offence, the JJB is required to pass orders that adhere to
the spirit of juvenile legislation. Majority of the juveniles adjudged delinquent by JJBs are
released on probation to the care of a parent or guardian. Release of a juvenile on probation of
good conduct allows him to serve his sentence in family setting, sometimes under the
supervision of the P.O.

It has been internationally documented that incarceration of a juvenile in a detention facility

should be resorted to only in exceptional cases and for a minimal period. It is only in the
absence of parents or guardian, or when the parent or guardian are not found fit to be given the

13
Section 14, Juvenile Justice (Care and protection of Children) Act, 2000

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care of the juvenile, or when non-institutional modes of disposition could cause physical or
psychological danger to the juvenile, that the juvenile should be institutionalized.14 Any
organization that has a suitable programme and is willing to take responsibility of the juvenile
may be given the charge of a juvenile if the JJB believes that such programme will aid in the
rehabilitation of the juvenile.15 It is only in rare cases that a juvenile may be confined in a place
of safety instead of a Special Home. This rare case is a situation where the juvenile has attained
the age of 16 years and the offence committed is of a serious nature or the juvenile’s conduct
is improper.16 It must also be noted that not every juvenile who has committed murder or rape
is to be kept in a place of safety. Incarceration in a place of safety should be ordered only if it
would be dangerous to keep the juvenile with other juveniles because of the peculiar nature of
the offence committed or the behaviour of the juvenile.

Further, any order passed by the JJB may be challenged in appeal before the Sessions Court
within thirty days of the passing of the order.17

Sentencing juvenile offenders to death is prohibited by international law. Article 37 of the

Convention on the Rights of the Child states that “State parties shall ensure that: Neither
capital punishment nor life imprisonment without possibility of release shall be imposed for
offences committed by persons below the age of eighteen years of age.” I would like to raise a
question here that are those juvenile who commit heinous offences of murder and rape are also
not to be treated equal to adults and thus no grave punishment has to be granted to them? Is it
the physical age that matters in determining the punishment and not the mental age of an
individual?

Determination of Age of the Child

Determination of the age of a child under the JJA is essential for two specific reasons. Firstly
such age determination is of paramount importance to find out whether or not the person so
accused falls under the purview of the JJA and secondly, recording of the same as nearly and
accurately as possible is essential for deciding the duration of institutionalization. This is
however not an easy task especially in borderline cases, the reason being, children usually do
not have any documentary evidence and medical examinations. The second question that is
raised in relation to determination of age is that of burden of proof. The Supreme Court has in

14
Clause 46 of the United Nations Guidelines for the Prevention of Juvenile Delinquency
15
Section 2(h) of Juvenile Justice Act, 2000
16
Section 16 of Juvenile Justice Act, 2000
17
Section 52 of Juvenile Justice Act, 2000

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the case of Gopinath Ghosh and Bhola Bhagath v State of Bihar18 categorically stated that the
responsibility of adjudging the age of the accused in case of any doubts as brought forth lies
with the Magistrate and the Court as dealing with the said matters.

Not Kids Anymore: A Need for Deterrence in the Juvenile Justice System

With increasing number of juvenile committing horrendous offences requiring severe

punishment, a question that is raised by every individual in the country today is why they are
not being treated as equivalent to adult offenders and awarded grave punishment. While the
public is of the view that ordering a rape convict or a murderer to spend just three years in a
correctional home is not going to deter others from committing crimes against women, the
Child Welfare Committee is of the view that juvenile offenders undergo severe mental trauma
owing to their upbringing in crime-prone localities; constant exposure to criminal activities
turns them into criminals; providing psychological counselling, and not punishing them, will
help in their transformation. Mr. S. Syed Ahmed, former Chairman of Child Welfare
Committee has also pointed out that there is no concrete data to prove that stiff punishment
resulted in the lowering of the crime rate anywhere in the world. He said that crimes occur even
in nations such as Saudi Arabia which follow the policy of an eye-for-an-eye and tooth-for-a-
tooth; therefore what is required is a change in our outlook and not stringent punishment.19 I
would like to know from Mr. Ahmed and all others holding the same view that what outlook
are they striving to change? Is it the one which makes a mother pray for death penalty to the
criminal of her daughter or is it the one which makes the public come out in large numbers and
hold protests and demonstrations asking the law makers to treat and punish juveniles according
to their mental and not physical age? Saying that stringent punishment is not required to deter
crime in the country is too oblique a perspective. That way, even adult offenders should not be
punished stringently; why should they be, when such punishment does not serve the purpose
of deterring the crime rate of the nation?

The underlying principle in not awarding exemplary punishment to juvenile is the legal
philosophy that juveniles lack the mental and physical maturity to take responsibility for their

18
1997 (2) ALD Cri 645
19
Should the Juvenile Justice Act be amended, The Hindu, available at
http://www.thehindu.com/news/cities/Madurai/should-the-juvenile-justice-act-be-amended/article5095898.ece

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crimes, and because their character is not fully developed, they still have the possibility of
being rehabilitated. With the changing times, the interest in protection of juveniles has to be
balanced with the interest of protecting particularly vulnerable members of the society from
violent crimes committed by persons less than 18 years of age and amending the law.

Conclusion

Before claiming an amendment, we must think of those unfortunate juveniles who may have
committed certain offences in compelling circumstances. Also, though an amendment is
sought, there is no defined parameter to treat an offence as heinous or grave. Those demanding
a change must first seek to define the particular offences for which such amendment is sought.
Therefore, either extreme is not desirable. A delicate balance must be struck as per which most
juveniles, as a general rule, are required to be treated in a more humane manner, but in some
rarest of the rare cases of heinous and grievous offences deliberately committed by a juvenile,
he may be subjected to prosecution and punishment under the normal criminal laws of the
country. The response to juvenile crime has to be fair, age-appropriate and in keeping with
development psychology. Any amendment to existing law requires in-depth understanding of
the jurisprudence, philosophy and impact of the current law. Amending the law as a reaction
to the countywide outrage against one juvenile may not serve the purpose as it might affect
those other hundreds who are rightfully entitled to the juvenile justice system already prevailing
in the country. Thus, what we require is a balanced and thoughtful approach wherein the
juveniles who have the mental capacity to commit grave offences must be punished with
exemplary punishments, while those others committing petty offences and not possessing the
mental capacity to do so must be brought under the veil of juvenile justice system and efforts
must be made to rehabilitate them.

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